Symposium Feb. 29: The Changing Relationship Between Local Prosecutors and State Governments

New Online: Zero-Option Defendants: United States v. McLellan and the Judiciary’s Role in Protecting the Right to Compulsory Process

By: Wisdom U. Onwuchekwa-Banogu

Latest Issue: Volume 113, issue 3

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Inviting Submissions to JCLC Online, Our New Feature

Beyond Due Process: An Examination of the Restorative Justice Community Courts of Chicago

By: O'Brien, Jackie | January 1, 2023

As American society has reckoned with the harmful effects of mass incarceration, there has been a push to consider alternative forms of achieving justice. Restorative justice is one such method. A transformative approach to conflict resolution inspired by the traditions and practices of indigenous peoples, restorative justice offers a comprehensive means of addressing harm, emphasizing the community, rather than the single act that caused harm. Many jurisdictions and communities have turned to restorative justice to divert cases from the punitive criminal legal system. While there are variations in programs and approaches, many communities integrate restorative justice practices as a means of addressing harm caused by young people. Applying a restorative approach, these initiatives seek to undermine the harmful, life-long effects that interaction with the criminal legal system imposes upon young people. These restorative alternatives operate against the backdrop of the punitive system, leading scholars, practitioners, and community members to raise concerns about the lack of procedural protections in place for individuals proceeding through these diversionary programs. Because the proceedings are less adversarial in nature, the legal community has sounded the alarm about the potential for self-incrimination, coercion, and less zealous advocacy by counsel. This unease is further compounded by the fact that failure to complete the requirements of these programs can lead to a referral back to the traditional criminal legal system. The Restorative Justice Community Court of Chicago (RJCC) is one such alternative. Created in 2017, there are now three RJCCs operating in the North Lawndale, Englewood, and Avondale communities. This Comment seeks to analyze the due process concerns raised by members of the legal and restorative justice communities through the lens of the North Lawndale RJCC. Drawing on knowledge gained through my personal observations and interviews, it is clear that due process violations do not present a substantial threat to the success of the RJCC. Programs like the RJCC operate in a gray zone between the legal rigidity of the criminal legal system and the community-oriented approach adopted by the restorative justice community. This framework urges us to evaluate these programs through an alternative lens so that we can better understand their contributions to furthering justice while remaining aware of their shortcomings to create fully restorative spaces.

Casting a Ballot for Change: How to Overcome Jail Policy Deficiencies and the O’Brien Precedent to Expand Voting Rights for Jailed Individuals

By: Kampschnieder, Lorellee | January 1, 2023

Prior to the 2020 election, lawmakers in several states sought to expand voting rights for individuals with felony convictions, and while this work is important, a large swath of voters who legally never lost the right to vote are still unable to do so because they are detained in jail. These individuals, often detained prior to trial, have the right to vote pursuant to a 1974 Supreme Court ruling in O’Brien v. Skinner. However, despite the clear legal precedent protecting voting rights for those in jail, the right remains unrealized for most incarcerated individuals due to numerous barriers. Some localities, such as the Cook County jail, have taken steps to provide access to voting to those in jail. However, a multi-faceted approach using policy and legal solutions is necessary to address disenfranchisement in jail. This Comment first examines the extent of disenfranchisement in jail by showing that disenfranchisement specifically targets indigent individuals and minorities. It also reveals the specific barriers incarcerated individuals face when trying to vote from jail. Next, this Comment reviews and critiques the existing legal landscape of voting rights for those in jail stemming from the O’Brien case. Finally, this Comment offers potential legal and policy solutions that can redress the rights violations faced by those in jail who are unable to vote.

Are Police Officers Bayesians? Police Updating in Investigative Stops

By: Fagan, Jeffrey,Nojima, Lila | January 1, 2023

Theories of rational behavior assume that actors make decisions where the benefits of their acts exceed their costs or losses. If those expected costs and benefits change over time, the behavior will change accordingly as actors learn and internalize the parameters of success and failure. In the context of proactive policing, police stops that achieve any of several goals—constitutional compliance, stops that lead to “good” arrests or summonses, stops that lead to seizures of weapons, drugs, or other contraband, or stops that produce good will and citizen cooperation—should signal to officers the features of a stop that increase its rewards or benefits. Having formed a subjective estimate of success (i.e., prior beliefs), officers should observe their outcomes in subsequent encounters and form updated probability estimates, with specific features of the event, with a positive weight on those features. Officers should also learn the features of unproductive stops and adjust accordingly. A rational actor would pursue “good” or “productive” stops and avoid “unproductive” stops by updating their knowledge of these features through experience. We analyze data on 4.9 million Terry stops in New York City from 2004–2016 to estimate the extent of updating by officers in the New York Police Department. We compare models using a frequentist analysis of officer behavior with a Bayesian analysis where subsequent events are weighted by the signals from prior events. By comparing productive and unproductive stops, the analysis estimates the weights or values—an experience effect—that officers assign to the signals of each type of stop outcome. We find evidence of updating using both analytic methods, although the “hit rates”—our measure of stop productivity including recovery of firearms or arrests for criminal behavior—remain low. Updating is independent of total officer stop activity each month, suggesting that learning may be selective and specific to certain stop features. However, hit rates decline as officer stop activity increases. Both updating and hit rates improved as stop rates declined following a series of internal memoranda and trial orders beginning in May 2012. There is also evidence of differential updating by officers conditional on a variety of features of prior and current stops, including suspect race and stop legality. Though our analysis is limited to NYPD stops, given the ubiquity of policing regimes of intensive stop and frisk encounters across the United States, the relevance of these findings reaches beyond New York City. These regimes reveal tensions between the Terry jurisprudence of reasonable suspicion and evidence on contemporary police practices across the country.